The law and economics of RPM have been a frequent topic of discussion here for Thom and I especially, ranging from the empirical evidence on RPM, to competitive resale price maintenance without free riding, to the inappropriate use of the term “price-fixing” by journalists some who should know better to describe RPM, to the Commission’s recent musical instruments investigation, and of course, Leegin.
Thom’s latest entry into the RPM wars deserves a close read by all who are interested in this subject. Dr. Miles Is Dead, Now What? Structuring a Rule of Reason for Minimum Resale Price Maintenance is now available in published form in the William and Mary Law Review (SSRN version available here). Thom crafts a rule of reason approach to for evaluating RPM in a Post-Leegin (for now!) world. Thom, I hope that you’ll be submitting this for the record to the FTC hearings. My testimony at the FTC hearings took an approach very similar to Thom’s in attempting to structure a rule of reason inquiry around the available theory and evidence on competitive effects of vertical restraints and RPM specifically.
In any event, as the RPM battles rages on (and I hope it does, as the consumer welfare upside for the pending legislation is likely negative in my view), Thom’s article is worth the investment.